October 2009

About Thompsons

Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has offices operating in England, Northern Ireland, Wales and Scotland.

On employment and industrial relations issues Thompsons acts only for trade unions and their members. The firm represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights team.

The firm regularly responds to Government and other public consultation papers on employment rights issues and other key areas of the law.

Response summary

• A public body should be defined as any organisation undertaking a public service.
• The duty should apply to all public bodies and those providing a public service irrespective of size.
• The duty to publish equality objectives is necessary in order to comply with the general duty.
• Bodies should identify a person within the organisation as responsible for compliance with equality duties.
• Equality reps should have statutory status.
• Equality objectives should be set according to each “protected characteristic”.
• Annual reporting on progress should be a mandatory part of annual accounting.
• Requirement to report gender pay gap, ethnic minority employment rate and disability employment rate should apply, regardless of size.
• Sanctions with teeth for non-compliance, including meaningful penalties.

Thompsons’ response to the questions

Q1: Do you think the criteria set out above are the right ones? Please give your reasons.

We consider that the criteria are too vague to be appropriate to consult on. Attempting to settle the criteria when the department has yet to decide on such key things as which organisations will be subject to the general Equality Duty, which will have specific duties, and when it offers no proposed definition of “significant employer” or what is a “significant effect” on the lives of people from the protected groups, is misjudged.

We trust that the department will consult further when it has firmer proposals in order to avoid conflict and potential litigation around which organisations are subject to which duties.

Thompsons suggests that the only fair way to introduce equality duties is to impose them on all public bodies, not just those responsible for what the government judges to be core or important public services.

We consider that the legislation should clearly define a public body as encompassing not only those on a non exhaustive list (in any appendices) but those who undertake any public service either on behalf of, or in place of, a statutory authority whether by contract or other arrangement.

A definition of public body should be defined widely enough to include private organisations undertaking public functions as well as including those who are subject to any inspection by any statutory audit or body. The latter of which would ensure those in prisons and care homes are included. This would also ensure consistency with provisions on procurement and minimise the opportunity of anomalies arising.

Indeed we do not understand why some organisations would be subject to the general Equality Duty and others specific duties and are concerned at the implication that smaller organisations (the definition of which is not given) would find specific duties to be burdensome.

This approach simply encourages the prevalent attitude within the business community that equality is an add-on (rather than an integrated part of any business plan) and therefore is a burden.

Thompsons believes that the criteria as set out in all their vagueness and the department’s misguided concern about burdens on business will lead to some employees being treated less favourably than others. Indeed the criteria is likely to create inequality between groups of workers employed by the same organisation where some are in a section or unit which has a public function and others are not.

This surely cannot be the intention of a Bill aimed at reducing inequality and discrimination in the workplace.

Q2: Are there any other criteria we should use? If so, what do you suggest?

As said above, the criteria should be simple – that the duty applies to all public bodies and bodies undertaking a public function irrespective of size or type of public function they perform or provide.

Q3: Do you agree that public bodies should have a specific duty to publish equality objectives with reference to the relevant evidence and their wider general Equality Duty obligations?

Yes. We consider that the specific duty should be made explicit and that the duty to publish equality objectives is necessary in order to comply with the general duty.

Whilst we recognise that objectives should be set taking into account the information the public authority may have already gathered in order to comply with the general duty, we consider that the question assumes that all public sector authorities to whom the duty applies will have gathered evidence as to the effect its policies and practices have on all protected groups.

For this reason we consider that the specific duty to publish objectives should set out the following requirements:

In determining the equality objectives the public authority should:

i) Set out those functions, policies and practices including proposed policies
and practices which it has reviewed and how that has determined the equality objectives;

ii) Consult with employees, service users and trade unions with a view to reaching agreement on the specific equality objectives, how these will be achieved and monitored;

iii) Provide training to all those involved in determining the equality objectives, in the public sector equality duties; and

iv) Set out the format for publishing the equality objectives identifying the equality objectives, how they will be monitored, the time frame by which the objectives are expected to be met and those responsible for implementing the objectives.

In relation to iv) above we consider that the public bodies should identify a person with responsibility for ensuring compliance with the equality objectives and that this should be someone from senior management personnel. We consider that by identifying someone with particular responsibility, as happens in relation to health and safety, that this will assist in mainstreaming equality objectives. Those unclear about how they fit with other management and business objectives will be able to obtain specialist advice.

In relation to ii) we consider that equality representatives should be given the same statutory status as health and safety reps and that public bodies should be required to consult with them in a joint consultative forum. Thompsons believes that lessons can be learned from established consultative forums which exist for health and safety where it is well recognised that trade union health and safety representatives and effective consultation leads to higher levels of compliance and better health and safety performance.

There should be harmonisation so that all those covered by the general duty are also required to comply with the specific duty given that in our view the specific duties are necessary in order to comply with the general duty.

We are concerned that, if the Government is committed to its focus on the need to mainstream equality and on outcomes rather than processes, it will be difficult for public bodies to evidence compliance with the general duty without demonstrating how it has applied the general duty to the specific duties. Indeed the Equality and Human Rights Commission’s own research showed that the vast majority of those responding were clear that by implementing the specific duties they were able to make real improvements.

If the Government were to limit the specific duties to fewer public bodies this would in effect limit actual improvements and so be contrary to the stated aims of the new public sector equality duty.

We suggest that the Equality and Human Rights Commission provide guidance to ensure that steps to address socio economic inequalities do not conflict with or undermine the equality objectives.

Q4: Do you agree that public bodies should set out the steps they intend to take to achieve their equality objectives?

Yes. However, as pointed out in answer to question 3 above, we consider that this should be achieved in joint consultation with equality reps, employees, service users and trade unions including equality representatives, for the reasons set out above.

Furthermore, the steps should be recorded in a uniform format so that the steps to meet the equality objectives are easily identifiable with a timescale and clear plan as to how they will be achieved including who will be involved and how they will be measured. This will make comparative analysis easier.

Q5: Do you agree that public bodies should be required to implement the steps they have set out for themselves within the business cycle period unless it would be unreasonable or impractical to do so?

We consider it reasonable to expect public bodies to have met their objectives within three years provided they carry out the annual progress review (as suggested below) to ensure that they are on target. Such a review we suggest should be part of the consultative forum we refer to in answer to question 3 above.

Q6: Do you agree that public bodies should be required to review their objectives every three years? If not, what time-period do you suggest instead?

Yes. See answer to question 5 above.

Q7: Do you agree that public bodies should set equality objectives taking into account priority areas set by the relevant Secretary of State?

It is not clear how the Secretary of State will identify priority areas and who they will involve in determining those priorities. We are concerned that the priorities may not be necessary or relevant for a particular public body and may override and or undermine those identified by the public body.

Q8: Do you agree that public bodies should not be required to set equality objectives in respect of each protected characteristic?

No. This will lead to confusion as to how the specific duty meets the general duty which requires public authorities to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not.

Further we consider that this approach engenders a system of a hierarchy of rights rather than equality for all. Equality is not about competing rights but about working towards respect for others as set out in section 143 (5) of the Equality Bill. By not requiring public bodies to set objectives on all protected characteristics the impression is given that some rights are more important than others.

A failure to address this imbalance could lead to increased litigation about whether a public authority has not only failed to meet its general duty obligations to have due regard to the need to advance equality of opportunity and foster good relations between groups, but has effectively discriminated against one group by failing to identify an equality objective in relation to a particular protected characteristic.

For example, where a public authority has identified as an equality objective the need to review its recruitment policies in relation to black minority ethnic candidates but does not have a similar equality objective in respect of religion or belief. Case law has established that discriminatory conduct should be strictly regulated. We suggest that a failure to require all protected grounds could lead to a claim that the public bodies omission amounts to discriminatory conduct.

This proposal also fails to take into account the legal obligations which arise from dual discrimination. For example, where a public authority sets an objective in relation to a review of its promotion policy to encourage women but which does not set an objective in relation to how it will improve representation of gay, lesbian, bi-sexual or transsexuals in more senior positions.

The failure, in this example, to address sexual orientation in its promotion policy could lead to further litigation. In particular, Employment Tribunals can infer discrimination from policies and practices including a failure by an employer to take adequate measures to address discrimination on grounds of a particular characteristic. There is no justification defence in a claim of direct discrimination in these circumstances.

If the Government is serious about its commitment to encourage public authorities to think how “to deliver on equality effectively” it should not then attempt to create a hierarchy of rights by condoning a system which effectively allows public authorities who find certain areas of discrimination too difficult to deal with, not to set objectives for that particular characteristic.

Given that public authorities will have three years to implement these objectives we do not consider it too onerous on public bodies to set objectives on all protected characteristics.

In any event we consider it is difficult to reconcile the Government’s position here with its own Equality Impact assessment (Annex D to the consultation document) which states that 80% of the respondents to the research had seen improvements in the way their organisations made decisions or allocated resources as a result of the requirement to comply with specific duties. How then, without the specific obligation to produce objectives for all protected characteristics does the Government expect public authorities to achieve equality for all the protected characteristics?

Taken together with the focus on the gender pay gap, ethnic minority employment rate and the disability employment rate in relation to the reporting requirements gives the impression that public authorities are not required to take any measures to address discrimination and promote equality on the other protected grounds. Ultimately, this has the effect of undermining the Government’s commitment to the equality duty applying to all protected characteristics.

Q9: Do you agree that public bodies should be required to report annually on progress against their equality objectives, but that the means by which they do so should not be prescribed in legislation?

We agree that the public bodies should be required to report annually on progress against their equality objectives for three reasons:

1. To ensure that the public body is actually maintaining progress. All too often the objectives set out in equality schemes have not been addressed. For example, on seeking disclosure of the impact of an harassment policy from a University in an Employment Tribunal claim for sex discrimination, it was evident that, although an objective to update and improve the policy had been identified some twelve months earlier, no steps had been taken to implement that objective.

2. To ensure some consistency so that employees, managers and service users know when and how to access reports.

3. To make public bodies accountable as they are for all other business objectives.

We do not agree that the means by which bodies report should not be prescribed in legislation. For all the reasons above we consider that it should be mandatory to record progress as part of annual accounting.

Furthermore, we believe this will help promote public bodies’ commitment to equality as being part of the mainstream business agenda. A failure to make this mandatory will endorse the strong belief in the electorate that once again equality is put on the back burner.

Q10: Do you agree that public bodies with 150 or more employees should be required to publish their gender pay gap, their ethnic minority employment rate and their disability employment rate? We would welcome views on the benefits of these proposals in encouraging public authorities to be more transparent.

We welcome the proposal that public bodies with 150 or more employees should be required to publish their gender pay gap, their ethnic minority employment rate and their disability employment rate. We are disappointed that this duty is not imposed on all public bodies. Monitoring and publishing such data is an effective way of ensuring that the organisations take responsibility for action to ensure equality of opportunity and to measure the effectiveness of such action.

Q11: Do you agree with the proposal to use the overall median gender pay gap figure? Please give your reasons. If not, what other method would you suggest and why?

We agree that the median rather than the mean should be used for the reasons given in the consultation document. We believe that the measure would be more effective if, in addition to the overall gender pay gap, the median gender pay gap by grade was also published as this would encourage organisations to address issues of equality of access to senior jobs as well as equal pay. At the moment that additional information is optional but we believe it is essential to achieve the objectives of the general Equality Duty.

Q12: Do you have any evidence of how much it would cost to produce and publish this information, and of what the benefits of producing and publishing this information might be?

Thompsons as an employer produces such information on an annual basis and has also conducted an equal pay audit. As a result the firm has a justified confidence in its pay structure in relation to the gender pay gap. Producing such information does of course involve a significant amount of work and resources. But we do it because we are committed to the principle of doing so and to being an employer of choice.

Any organisation delivering public services should be prepared to commit resources to developing systems that enable this sort of data to be collected and published, as we have done. Indeed any organisation that claims to be incapable of doing so should not be in a position to attempt to deliver public services.

Q13: Do you agree with the proposal not to require public bodies to report employment data in relation to the other characteristics protected under the Equality Duty? If not, what other data do you think should be reported on?

It is recognised that some employment data is easier to record than others but we consider that, in light of the number of years which public bodies have been producing race equality statistics and taking into account the Government’s own research , that there should be a requirement to record additional criteria which mirrors this under the Article 5 (2) Race Relations Act 1976 (Statutory Duties) Order 2001 SI/2001 No. 3458 in relation to gender and disability.

A large number of public bodies will have this information already. Furthermore we are of the view that a requirement to publish this data will give contracting authorities greater credibility in the procurement process.

Q14: Do you agree with the move away from an emphasis on describing process, to requiring public bodies to demonstrate how they have taken evidence of the impact on equality into account in the design of their key policy and service delivery initiatives and the difference this has made?

We are disappointed that there is no requirement to carry out equality impact assessments as a matter of course. The proposal is neither certain or explicit in terms of what public authorities are required to do and it does not comply with the body of case law which has developed around the existing public sector duties.

Further the consultation document suggests that public bodies may take account of evidence of the impact on equality at a number of different stages. This is contrary to the case law which has established that the general duty to have “due regard” to the need to eliminate discrimination, harassment and promote equality of opportunity (and which is now replicated in clause 143 (1) of the Equality Bill) amounts to a requirement “to ensure that the body subject to the duty pays due regard at the time the policy is being considered - that is, when the relevant function is being exercised – and not when it has become the subject of challenge.” . [our emphasis].

It is clear that jurisprudence has established a requirement for a public authority to conduct an equality impact assessment prior to introducing a policy. A failure to implement a requirement which is consistent with the case law will almost certainly lead to further costly litigation.

There is already a large body of guidance on producing equality impact assessments and many public authorities are already familiar with how to conduct equality impact assessments.

Unlike the process involved in preparing an equality scheme a requirement to carry out an equality impact assessment is more easily understood and recognised. This is evident from the Government’s own equality impact assessment on the proposals for the specific public sector duties as set out in the consultation document at Annex D. The benefits of equality impact assessments were set out in a recent article.

We feel let down by the proposal since instead of building on one of the key successes of the existing public sector duties the Government is choosing to remove the requirement and replace it with a nebulous and therefore much weaker duty.

Q15: Do you agree that public bodies should have a specific duty - when setting their equality objectives, deciding on the steps towards their achievement and reviewing their progress in achieving them to take reasonable steps to involve and consult employees, service users and other relevant groups who have an interest in how it carries out its functions - or where appropriate their representatives; and in particular take reasonable steps to consult and involve the protected groups for whom the duty is designed to deliver benefits?

We welcome the proposal to make it a specific requirement for public bodies to consult when setting their equality objectives, deciding on the steps towards their achievement and reviewing their progress in achieving them.

As stated in answer to question 3 above we consider that a consultative forum with equality representatives to be the most effective forum for guaranteeing effective implementation of equality objectives and again make the comparison with health and safety representatives referred to in the footnote to our answer to question 3.

Q16: Do you think that imposing specific equality duties on contracting authorities in relation to their public procurement activities are needed, or are the best way to help deliver equality objectives? Do you think such an approach should be pursued at this time?

Yes. Despite a plethora of guidance for public bodies on how to comply with their equality duties when carrying out procurement it would appear that the majority of public authorities have failed to make equality considerations form part of the procurement process. Guidance on its own therefore has had little impact and with almost a third of British companies contracted by the public sector now is the time to address this anomaly.

The failure to address equality through procurement and specifically in relation to the proposed equality objectives could lead to disparate treatment amongst same sections of the workforce. This is particularly the case where work is contracted back in.

We are concerned at the suggestion that the duty will be limited and in particular that very small scale purchases that fall below the Public Sector Directives will not be affected by the specific duties.

In particular, we note that local authorities have been encouraged to, and a significant number already have, sign up to the Small Business (SME) Friendly Concordat which promotes procurement with SME’s.

The Office of the Deputy Minister Good Practice Guide states “An approach to procurement that embraces the contribution that can be made by SMEs can contribute to the sustainability of our communities and to the economy at large”.

That sentiment will not be achieved without SME’s in procurement being required to comply with both the general and specific duties. Furthermore, large sections of the workforce would be excluded given that SME’s make up 55% of employment.

Q17: Do you agree that contracting authorities should be required to state how they will ensure equality factors are considered as part of their procurement activities?

Yes. For the reasons set out above in answer to question 16 and for the reasons set outlined in the consultation at paragraph 5.37.

Q18: Do you agree that contracting authorities should be required to consider using equality-related award criteria where they relate to the subject matter of the contract and are proportionate?

We agree that contracting authorities should be required to consider using equality related criteria for the reasons set out above. However, we see no reason to limit this to where this relates to the subject matter of the contract and are proportionate.

In any event we fail to understand what is meant by “where they relate to the subject matter of the contract” given the very nature of the equality objectives and in particular the need to address the gender pay gap. We are concerned that a failure to use equality related criteria will lead to further litigation particularly relating to equal pay

Q19: Do you agree that contracting authorities should be required to consider incorporating equality-related contract conditions where they relate to the performance of the contract?

We agree that contracting authorities should be required to consider incorporating equality-related contract conditions. However, we fail to see the need for the qualifier since in our experience performance of the contract generally involves some equality considerations.

As noted in the Regulatory Impact Assessment at Annex C we consider that procurement officers would welcome the strengthening of the legal position in making them feel more confident in including equality considerations within their procurement activities. However, this will only be effective if there is adequate enforcement.

Q20: What would be the impact of a regulatory proposal aimed at dealing with suppliers who have breached discrimination law? What might be the benefits, costs and risks?

We consider that this would be beneficial in that it would clarify liability and with whom this lies.

Q21: Do you support the proposal to establish a national equality standard which could be used in the procurement process? If so, do you believe this is achievable through a specific duty or is this better tackled through a non-legislative approach? Are there any practical issues that would need to be considered?

We consider that the proposal to have an equality standard would only be of use if it were to be comparable to the specific equality duties and if there was a requirement on contractors to recognise the standard. Any effort to introduce a standard which is neither indicative of whether equality objectives have been met nor which is a requirement in order to compete for public contracts would be counterproductive.

In particular, a non legislative approach is unlikely to have any impact and could undermine the procurement process suggested above. We consider that the need for an equality standard should be addressed as part of a review of the effectiveness of the proposals to legislate for equality in procurement.

Q22: Which of the above four models do you consider achieves the best balance between joined-up working and senior accountability for equality outcomes, while avoiding unnecessary burdens? Please explain why.

In our view (1) achieves the best balance since it is clearly linked with outcomes by linking to the national equality priorities that public bodies will be required to set in order to meet the specific duties. There should then be no further costs as this will already be required as part of their specific duty.

Q23: Do you have any other suggestions how this duty could be remodelled to retain the valuable features of senior accountability and joined-up working, whilst avoiding unnecessary burdens?

There should be clear guidance in a Code of Practice that impact assessments need to be made at each and every stage of the decision making process which should then be monitored and analysed as to its effectiveness in delivering equality across the board.

Q24: Are there any specific requirements, other than those that we have proposed, which you think are essential to ensure that public bodies deliver equality outcomes in an effective and proportionate manner?

We consider that there is little point in having a statutory requirement if there is no effective enforcement mechanism. The need for effective enforcement and more particularly a regime of sanctions for those who fail to comply is vital if there is to be proper implementation and mainstreaming of equality issues.

As we have said, we agree that consultation is central to effective implementation of the public sector duties in relation to equality. Therefore we consider that there should be a penalty for those public bodies who fail to comply with the specific duties we have set out in answer to question 3 above and that the penalty be punitive. We consider the obligations to consult and deliver on equality to be no less important that the obligations on employers to inform and consult in relation to transfers of undertakings and redundancies (protective awards).

The availability of protective awards for breach of the specific duties would send a clear message that not only is the Government serious about its commitment to implementing effective equality duties but that equality is regarded in the same manner as other objectives. This would be true mainstreaming of the equality agenda.

Q25: What role do you think the guidance from EHRC should play in helping public bodies implement the specific duties in a sensible and proportionate manner? What do you think it would be helpful for such guidance to cover?

It should be a statutory code of practice which sets out what public bodies have to do in terms of:

• The information that should be taken into account when setting objectives;
• How the objectives can be identified
• The duty to consult and how that should be applied in practice at every stage of the process from formulation to implementation and monitoring the specific duties;
• The requirement to assess and review; and
• Sanctions for breach of the equality duty.

We consider that were the Government to opt for guidance that would be as ineffective as the guidance on equal pay has been in eliminating unequal pay. Only a code of practice would suffice in an area of such importance and given our proposals on the legal penalties public bodies could face (were our suggestion on enforcement to be adopted).